Ex-Prosecutor Loses Bid |to View Probe Documents

(CN) – A federal prosecutor’s emails to his attorney on government computers are privileged, a federal judge in Washington, D.C. ruled, rejecting a motion to compel discovery filed by a former federal prosecutor accused of prosecutorial misconduct in a high-profile terrorism trial in Detroit.

Richard Convertino, former lead counsel in U.S. v. Koubriti, claimed that someone leaked information about the misconduct allegations to the Detroit Free Press, possibly in retaliation for his criticism of the Bush administration. Convertino lost his job after his convictions in Koubriti were overturned in 2004 due to prosecutorial misconduct. In 2004, he sued the Department of Justice and assistant U.S. attorney Jonathan Tukel, who was part of the committee that sent allegations to the department’s Office of Professional Responsibility. Convertino wanted the government and Tukel to hand over 736 documents related to the initial investigation and the later probe into the leak. Chief U.S. District Judge Royce Lamberth said the material was protected by a variety of privileges, including attorney-client, deliberative process and work product privileges. Thirty-six emails Tukel sent to his private attorney are protected, Lamberth explained, because the agency does not ban personal use of company email; thus, Tukel had a reasonable expectation of privacy. The deliberative process privilege applies, the judge added, because the documents qualify as internal investigation material until the leaker’s identity is known. The judge also rejected the notion of a government cover-up. “Despite plaintiff’s attempts to view the privileged documents, there is no evidence of misconduct,” Lamberth wrote. “We need to encourage candid communications among government officials, allowing officials to deliberate honestly with each other, without fear that their discussions will be exposed to the public,” especially during investigations, he added.